In Executive Order 13636, President Obama directed the Secretary of Commerce and the National Institute of Standards and Technology (NIST) “to lead the development of a framework to reduce cyber risks to critical infrastructure…” While an executive order is directed only to agencies and offices within the executive branch, the purpose of the framework is “to help owners and operators of critical infrastructure identify, assess, and manage cyber risk.” These “owners and operators” are primarily private sector companies that form the critical infrastructure and provide financial, energy, telecommunications, water, public health and other services to the nation. The order was necessary because of the inability of Congress to pass legislation relating to critical infrastructure and cybersecurity. The principal areas of contention were the nature and extent of public-private information sharing, appropriate privacy protections for any information that is shared, and liability protections for those companies that share information with the government.

NIST published the “Preliminary Cybersecurity Framework” October 29 of this year after a series of conferences, workshops, meetings and general industry outreach. The Framework is comprised of a Core, a Profile, and Information Tiers. The Core contains standards and best practices that are common across all sectors and industries. The standards are divided into five functions: Identify, Protect, Detect, Respond and Recover, which are generally consistent with industry and international information security standards such as ISO 27001. The Profile section is intended to be a tool for a company to map its “Current” alignment with the standards against a “Target” profile that will address identified cybersecurity risk. The Framework provides the concept of a profile but does not specify templates for creating one. Rather, a company or sector might use the elements of the Core to construct its own Current and Target profiles. The four Implementation Tiers describe increasingly rigorous and mature states of cybersecurity, from “Partial” (ad hoc) to “Adaptive” (cybersecurity Nirvana), against which an organization can conduct a self-evaluation based on risk, resource and regulatory considerations. The Framework is a rigorous set of standards and methodologies that one would expect of NIST, given its existing expertise in the field of cybersecurity.

The comment period ran through December 13 and NIST has received significant input from many industries, sectors and organizations. While there is general industry support for the purpose, content, and collaborative development of the Framework, there is less certainty around its eventual effect and implementation. The introduction to the Framework contains the following statement: “Because each organization’s risk is unique, along with its use of IT and ICS [industrial control systems], the implementation of the Framework will vary.” It remains to be seen whether the Framework is truly voluntary and tailorable to the needs of a given organization.

Another area of focus for many commenters is the reference to the Fair Information Practice Principles (FIPPs) in Appendix B of the Framework and its treatment of privacy and civil liberties. A discussion draft that was circulated to industry in August did not have an explicit reference to FIPPs in Appendix B, and its inclusion in the Preliminary Framework is concerning. FIPPs was first articulated in the early 1970s and provides the conceptual basis for the Privacy Act of 1974, which guides how the government obtains, retains and uses information about citizens. It is referenced in section 5 of the Executive Order but only in the context of agency activities. While government agencies may have developed policies around FIPPs, a private entity would be less likely to have. In fact, many statutory and regulatory regimes apply directly to companies that collect, process, store and share personal information of their employees, customers and others. Financial institutions are regulated under the privacy and security provisions of the Gramm-Leach-Bliley Act, health care organizations are subject to the privacy and security rules under HIPAA, telecommunications companies know how to protect Customer Proprietary Network Information, energy companies are familiar with the treatment of Customer Energy Usage Data, and the Federal Trade Commission has been very active in protecting personal privacy online.

More importantly, the Cybersecurity Framework may be directed away from its principal function if undue emphasis is placed on rules governing the treatment of personal information, thereby frustrating its purpose. The Executive Order defines critical Infrastructure as “systems and assets, whether physical or virtual, so vital to the United States that the incapacity or destruction of such systems and assets would have a debilitating impact on security, national economic security, national public health or safety…” In testimony before the House Permanent Select Committee on Intelligence earlier this year, witnesses emphasized that most of the information that is processed in these critical infrastructure systems contains little or no personal data. If the presence of personal information in these systems is limited, if there are existing regulatory schemes for protecting such information, and if the purpose of the Framework is to protect all data in these systems, then implementation of a consensus Framework should be attainable. We have seen how striking the balance between privacy and security continues to elude attempts at information-sharing legislation. Will that same elusiveness derail the development of a “prioritized, flexible, repeatable, performance-based, and cost-effective approach” to reducing cyber risks? Should it?

Client Alert 13-348